Mayor and City Council of El Dorado v. El Dorado Broadcasting Co.

• Decision Date: 20 December 1976
• Docket Number: No. 76--99,76--99
• Citation: 260 Ark. 821,544 S.W.2d 206
• Court: Arkansas Supreme Court
• Parties: , 2 Media L. Rep. 1427 The MAYOR & CITY COUNCIL OF EL DORADO, Appellants, v. EL DORADO BROADCASTING COMPANY and Carl Connerton, Appellees.

Page 206

544 S.W.2d 206

260 Ark. 821, 2 Media L. Rep. 1427

The MAYOR & CITY COUNCIL OF EL DORADO, Appellants, v. EL DORADO BROADCASTING COMPANY and Carl Connerton, Appellees.

No. 76--99.

Supreme Court of Arkansas, In Banc.

Dec. 20, 1976.

J. V. Spencer, III, City Atty., El Dorado, for appellants.

No brief filed by appellee.

BYRD, Justice.

Following some complaints by the black residents of the City of El Dorado about the use of federal revenue funds, the mayor held a conference in his office, at which four of the city's eight aldermen were in attendance, together with the city attorney and a man from the Mediation Service of the U.S. Department of Justice. Carl Connerton, a news reporter, was refused admittance to that conference. The record indicates that as a result of that meeting the city attorney was directed to prepare a resolution for the next formal city council meeting. The trial court entered a declaratory judgment to the effect that a meeting of any number, less than a quorum, of the members of the city council is subject to the Freedom of Information Act if the members of the council discuss, or take action on any matter on which foreseeable action will be taken. The trial court's order also emphasized that the Freedom of Information Act did not apply to meetings of any number of the city council for purposes of only obtaining information. The city councilmen appeal contending that the Freedom of Information Act should not be applied to a group of individual members of a governing body, less in number than a quorum, who meet either formally or informally on a matter on which foreseeable action might be taken, and who are not delegated on behalf of the governing body to perform any function whatsoever. In other words, appellants contend that the Freedom of Information Act should not be extended past the 'Committee' level envisioned in Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975). We cannot agree with appellants.

Ark.Stat.Ann. § 12--2802 (Repl.1968), provides:

'12--2802. Declaration of public policy.--It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act (§§ 12--2801--12--2807) is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials. (Acts 1967, No. 93, § 2, p. 208.)'

Ark.Stat.Ann. § 12--2805 provides:

'12--2805. Open public meetings.--Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.'

In discussing informal meetings the Court in Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal.App.2d 41, 69 Cal.Rptr. 480 (1968) stated:

'. . . An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. . . .'

In the Gazette case, supra, we pointed out:

'. . . When the General Assembly used the expression 'to learn and to report fully (Our emphasis) the activities of their public officials', it meant not only the action taken on particular matters, but likewise the reasons for taking that action. . . .'

The Freedom of Information Act applies alike to formal and informal meetings and since we are required to give the Act a liberal interpretation, we cannot agree with appellants that it applies only to meetings of officially designated committees. We can think of no reason for the Act specifying its applicability to informal meetings of governmental bodies unless it was intended to cover informal but unofficial group meetings for the discussion of governmental business as distinguished from those contacts by the individual members that occur in the daily lives of every public official. Any other construction would obliterate the word 'informal' as applied to meetings and make it simpler to evade the Act than to comply with it.

It has been suggested that the judgment appealed from is too far reaching in that it would apply to any chance meeting of any two members of a governmental agency or body. The suggestion that the trial court's order is too broad has not been raised by the appellants. The appellants' argument as set forth in their conclusion is as follows:

'It is respectfully submitted that the laudatory purpose of our Freedom Of Information Act would be protected and the public interest best served if the Act were not judicially extended to meeting of members of a governing body, not a committee, and less in number than a quorum, who discuss a matter on which foreseeable action might be taken. Certainly, such a group could not take 'official action,' nor could they bind the governing body in any way. Their actions would be limited, by operation of law, only to discussions.'

Furthermore, we do not interpret the trial court's judgment as applying the Freedom of Information Act to a chance meeting or even a planned meeting of any two members of the city council. By its very terms the trial court's order applies only to those group meetings such as the facts here showed--i.e. any group meeting called by the mayor or any member of the city council at which members of the city council, less in number than a quorum meet for the purpose of discussing or taking any action on any matter on which foreseeable action will be taken by the city council.

Affirmed.

HARRIS, C.J., and FOGLEMAN, J., dissent.

HARRIS, Chief Justice (dissenting).

I would affirm the judgment, if modified to confine the holding to the particular facts of this case, which I consider to be in violation of the Freedom of Information Act. However, the opinion, in my view, goes much further, and I accordingly dissent.

FOGLEMAN, Justice (dissenting).

My task would be easier if I could be certain exactly what the majority has held. The judgment of the lower court is affirmed. The majority states that it held that a meeting of any number less than a quorum of the members of the City Council of El Dorado is subject to the Freedom of Information Act, if the members of the council discuss, or take action on any matter on which foreseeable action will be taken. Then by invisible legerdemain, it does not construe the judgment to apply to any two members of the city council. And then it says that by its very terms the trial court's order applies only to those group meetings called by the mayor or any member of the city council, less in number than a quorum, for the purpose of discussing or taking any action on any matter on which foreseeable action will be taken by the council. No two of the three statements relating to the court's holding are consistent with each other.

I would first suggest that we should modify the court's judgment so that it applies to the facts of the particular controversy only. That related to a meeting called by the mayor, with four of eight council members and the city attorney present. It is a fair inference that the preparation of a resolution for action by the council was the direct result of this meeting, although the proposition is not without dispute. If the only question involved was whether there was substantial evidence to support a finding that the particular meeting involved violated the Freedom of Information Act, I would agree that the judgment should be affirmed. Anything beyond that was an advisory opinion, the giving of which is consistently shunned by this court and beyond the purposes of the Declaratory Judgment Act. Andres v. First Arkansas Development Co., 230 Ark. 594, 324 S.W.2d 97. I submit that the action taken here is subversive of the salutary purposes of the Declaratory Judgment Act. Such a result could, and should, be easily avoided.

The purpose of the Declaratory Judgment Act was considered in Andres. There it was pointed out that the requisite precedent condition to declaratory relief is a justiciable controversy, i.e., a controversy in which a claim of right is asserted against one who has an interest in contesting it. It was also emphasized that a declaratory judgment should not be granted unless the danger or dilemma of the plaintiff is present, not contingent upon the happening of hypothetical events, and that the prejudice to his position is actual and genuine, and not merely possible, speculative, contingent and remote. Whatever the reasons for not responding, appellees' failure to file a brief here is clearly indicative that they have no present danger or dilemma and that any issue, beyond the propriety of the meeting actually held, which gave rise to the controversy, is contingent, indeed, upon the happening of hypothetical future events. It also makes their prejudice appear to be highly speculative, contingent and remote.

The court before which a proceeding is pending cannot enlarge the issue beyond those raised by the pleadings. Weber v. Pryor, 259 Ark. 153, 531 S.W.2d 708. Both the trial court and this court have extended the issues. The appellees, who did not even favor us with a brief, and who have not pursued their cross-appeal, ¹ had requested notice of the following:

1. Any and all meetings of any officially designated committee of the City Council of El Dorado, Arkansas.

2. Any meeting called by the Mayor or any member of the City Council at which members of the City Council, less in number than a quorum, who do not constitute a committee of the City Council, meet...